Can the Roberts Court Save Donald Trump from an Impeachment?

That's not how any of this works

President Donald Trump is a nearly inexhaustible source of constitutional puzzles. I've practically organized a class around it. One never knows what new gifts he is going to bestow on us. Today, in his morning tweetstorm, he offers us the thought that he could appeal an impeachment to the U.S. Supreme Court.

Can he do that? One would think not, but I suppose hope springs eternal. There are both legal and political reasons for thinking the Court would stay out.

Legally, the text of the U.S. Constitution specifies that the House of Representatives possesses the "sole" power to impeach and the Senate possesses the "sole power to try all impeachments." When Judge Walter Nixon tried to appeal his impeachment and conviction to the U.S. Supreme Court on the grounds that the procedures that the Senate followed were defective, the Rehnquist Court unanimously rejected that effort.

The parties do not offer evidence of a single word in the history of the Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of the impeachment powers.

Chief Justice William Rehnquist even speculated about the problem of judicial review of a presidential impeachment.

We agree with the Court of Appeals that opening the door of judicial review to the procedures used by the Senate in trying impeachments would "expose the political life of the country to months, or perhaps years, of chaos." . . . This lack of finality would manifest itself most dramatically if the President were impeached. The legitimacy of any successor, and hence his effectiveness, would be impaired severely, not merely while the judicial process was running its course, but during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated.

The modern Court does not often seem inclined to invoke the political question doctrine, but here at least the justices were willing to admit that the Constitution had committed this question into the hands of the legislature, not the judiciary.

Perhaps there are circumstances that might tempt the justices to assert judicial supremacy over impeachments as well. After all, the Court is fond of reminding us that it is emphatically a judicial task to say what the law is, and what if Congress seemed to be riding roughshod over the Constitution in how it used the impeachment power? Imagine a Congress willing to impeach a president on grounds that no reasonable person could think constitutes an impeachable offense. Donald Trump apparently prefers to eat his steaks well-done with ketchup. To be sure, this is a grievous offense, but presumably no one thinks it is a high crime or misdemeanor. Imagine further that two-thirds of the Senate is willing convict such a president with no semblance of a trial. "Convict first, go through due process second," declares the Senate majority leader. The Court might well think that such a Congress has badly abused its constitutional powers and is not even making a pretense of adhering to a good-faith interpretation of the Constitution. Maybe a Court confronted with such a runaway Congress would be tempted to ride to the president's rescue and discover the limits to the political question doctrine.

But that's when politics comes into play. A Congress willing to impeach and remove a sitting president on the pretext that he routinely dishonors his steaks could hardly be trusted to sit idly by while the justices attempted to reinstall that president in the White House. If a Court were to attempt to intervene in such a scenario, the justices might well find themselves next on the chopping block. The justices might at this point recall the words of Chief Justice Salmon Chase when the Court was asked to order the president not to enforce the Reconstruction Acts in Mississippi after the Civil War.

Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?

"These questions answer themselves," Chase observed. Indeed. Sorry, Mr. President, you are on your own on this one.

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89 responses to “Can the Roberts Court Save Donald Trump from an Impeachment?”

I wish folks would stop obsessing over every little tweet from POTUS. I truly grow tired of these stupid articles and essays that purport to deconstruct and dissect every little thing Trump says.

Surely there are more substantive legal issues to parse. After all, if what Trump says on Twitter is absurd (and I agree, most of it is histrionically absurd), then there is nothing to worry about from a legal perspective.

But, because it’s Trump and because he’s trolling you, he makes law professors across America devote hours upon hours of thought on the most silly of tangential topics.

How about a new rule: you can’t comment on anything Trump says for 48 hours.

While ignoring the #1 law enforcement official in our country’s crazy tweets is a good and practical move to preserve our sanity, it effectively normalizes his regular disrespect for our legal system and related political norms. If we want to preserve our democracy, we need to take this more seriously.

What are the “political norms”? I hear this one kicked around a lot but no one really defines it. Do you mean the elites running this country? Or the fact that the elite Right is complacent with the liberal agenda as long as they get to keep their chunk of power? Please definite it.

You will spend the rest of your deplorable life having the liberal-libertarian agenda shoved down your whining throat, Jimmy. Get used to it. Or keep bitching about it. Doesn’t really matter to your betters. Watching conservatives get politically stomped is gratifying, but winning the culture war is largely its own reward.

“Political norms” means using the FBI to spy on your political opponents, obstructing the ability of the incoming administration to do it’s job, concealing evidence of criminal behavior behind a facade of executive privilege, and threatening reporters who try to expose your behavior.

These “political norms” have been around for 60 years. They’ll come back once President Trump leaves office.

Erosion of norms like expecting the President to maintain some level of professionalism and display more than the social minimum of ethics and morality would be a good start. I don’t think we’d have Trump as president were it not for the gradual chipping away at these things by every single president since Reagan. Clinton was reelected after his impeachment for cheating on his wife with a subordinate. The Democrats in the Senate weakened the filibuster before the Republicans finally eliminated it. I fully expect the next Democratic-majority Senate that sees a GOP-nominated USSC justice to simply refuse to ever give them a hearing. Now we have a Republican who makes Clinton’s sins look like amateur hour and who solidly checks all of the anti-democratic, authoritarian behavioral boxes. If he loses in 2020, will the elected Democrat pick up where he left off? If he wins, what will he do knowing he’s term-limited and effectively untouchable?

This isn’t about the president just saying dumb stuff. It’s about our national leadership showing disdain for the Constitution and our system of laws. It looks to me like that is becoming the new norm. I don’t see that leading to anything positive.

This is about our president saying dumb stuff, and the media complex overreacting, as its done since 2015 regarding Trump.

Listen, Trump’s an idiot. No doubting it. I wish he didn’t win the primary. But he did. And then the presidency. And then a decision needed to be made. Do we support the process of democracy, who the people legally elected president? Or do we work against the process of democracy because we think the President is an idiot and does dumb stuff? Do we try greyish, unusual actions, non-procedural actions, and unorthodox legal tactics, to attempt to get rid of him, because he’s an idiot and says dumb stuff?

Personally, I came to a decision a while ago. Unless he does something amazingly, unquestioningly illegal, the answer is no. The people elected an idiot, and we respect that decision, because we respect democracy. His more idiotic decisions and rash behaviors are reined in where possible, but we do not try to overthrow the legally, lawfully, elected president.

Now, you may argue differently, that el Trumpo needs to be dethroned. I would argue that those efforts are far more damaging to democracy than anything Trump, a single man could effect.

“Do we try greyish, unusual actions, non-procedural actions, and unorthodox legal tactics, to attempt to get rid of him, because he’s an idiot and says dumb stuff?”

Could you be clearer? Which unusual actions are you talking about? Are any serious people advocating revolution? Or do you consider impeachment proceedings “greyish” or “unusual” or “non-procedural” or “unorthodox”?

It’s just a proclamation that he’s going to resist the Dems plans to use investigations to cause him political damage, by fighting any Congressional subpoenas all the way to SCOTUS. They’re going to get nothing until SCOTUS says so.

And he frames it as a fight against impeachment so that when the Dems retreat from impeachment – as they are bound to do – he can score it as a win.

I don’t think the criticism is that the President “uses twitter”. That’s hardly remarkable, so did the last one. The criticism is that he tweets moronic things. Your defense is that he isn’t a moron, he’s just full of shit. (Although your “Don from Queens” makes me think that you are conceding he is, in fact, a moron.)

The President is pretty much the opposite of “a true man of the people”.

That kind of twaddle is what distinguishes 24-karat pro-Trump foolery from any species of thought.

No, he is not just some guy, of any kind whatever. He is the President of the United States. Which is why people respond to what he says, no matter how he says it. Because people would be reckless not to pay attention to the things Trump says, especially when those things suggest he knows nothing about the American system of government, or that Trump is losing his marbles, or both.

This goes to demonstrate that social media is terrible about communicating complicated messages. If you take a whole the President’s statements he means fight certain subpoenas and such in the federal courts which are part of a greater effort by the Left to try to frame any kind of impeachment effort since Mueller came up broke for them.

He did not state this in an artful manner and to be fair even if he did the media would have skewed it anyhow to make him look dumb (because that is their ongoing institutional effort…Trump is just a moron elected by hillbillies and “low information voters” that are equally as stupid).

Prosecutors almost NEVER ‘exonerate’ prospective defendants. I know I’ve heard about PA/DAs doing it for Clinton and the Ramseys. The rest may not need a human’s total number of fingers to enumerate. They either charge or not, or a GJ indicts or No Bills and many times the prospective defendant doesn’t even know about it

What we have is a multi million $$ Rorschach test called the Mueller Report. If you didn’t like Trump before, he’s GUILTY AS SIN! IMPEACH THE EM-EFFER!!!!! If not, well……

The Muller report is full of incredibly damning passages, like one about Russian officialdom’s efforts to reach the Trump campaign after the election: “They appeared not to have preexisting contacts and struggled to connect with senior officials around the President-Elect.”

Not only was there no “collusion,” the two camps didn’t even have each others’ phone numbers.

Trump is far from on his own. He has plenty of cowardly conservative appeasers — including a number of Conspirators — and a Republican Party that is largely all-in for Trump. He has a political base of easily lathered, poorly educated, intensely gullible, stale-thinking, superstitious, broadly bigoted rubes. He has an increasingly reliable partisan majority at the Supreme Court. He has a pal in Putin. He has plenty of cover from Congressional right-wingers.

What he doesn’t have is most of America, which is why Republicans should enjoy this while they can. The snapback may be closer and more severe than the coalition for backwardness and bigotry perceives.

I believe under relevant Bird Law precedent that this commenter is correct.

Obviously, an attempt to impeach Trump is just a cleverly disguised way of infringing upon his right to access waterways both foreign and domestic which is guaranteed under the 14th Amendment.

Also, this begs the question if obstruction of justice is a high crime or misdemeanor. It is obviously not a misdemeanor as Congress has chosen to classify it as a felony and the Courts would, rightfully so, hold that is a political question for the Legislative department. And also obvious is that a high crime must involve getting high in the first place. Obstruction of justice rarely ever involves the use of intoxicants and here it is patently obvious Trump was not high even if he was engaging in obstruction. So he would win on the count too.

I won’t even begin to discuss the any reasonable claims that could be made under the Tenth Amendment but for those interested just regard In The Matter of the Petition of Blue Jay. That will answer your question.

Treating this as just an intellectual puzzle, (I think Jimmy the Dane is right about this.) I can envision at least one circumstance under which the Court might be persuaded to take on a challenge to an impeachment.

Imagine that the House holds an impeachment vote, Pelosi declares the motion carried, and Trump says, “Now, wait one moment! I can prove that the House did not actually have a quorum present at any time during this vote, and thus was prohibited from doing any business except sending for enough members to achieve a quorum! Therefore Nancy is lying about my having been impeached, and the Senate cannot hold a trial.”

He then proceeds to produce affidavits testifying under oath as to the whereabouts of the House members during the vote, and a time stamped high resolution panoramic video of the House floor, in which it can clearly be seen that members are entering and leaving all during the vote, and that at no time during it were anywhere near a majority present.

Normally the Court would not care; Per the enrolled bill doctrine, House and Senate leaders are entitled to lie about whether or not a measure passed by the constitutionally required procedure. (Whether quorums were observed, the same text passed by both chambers, the members genuinely voted…)

BUT, in the case of impeachment, which the Justices are also subject to, they might abandon enrolled bill doctrine, and insist that the niceties be followed.

What this post does not discuss in detail are some of the concurrences in the Nixon case that suggest judicial review of impeachment may be available in extreme examples such as the Senate deciding guilt by the flip of a coin or the House using “eating steak well done with ketchup” as an article of impeachment.

Will the courts go full hog to invalidate an impeachment, especially that of the President? Probably not unless it is a complete arbitrary abuse of authority. But, it is still possible especially given the Democrats are essentially making up lies and bombast to try to justify their extreme rhetoric.

I’m pretty sure there is precedent where the courts have declared themselves unwilling to check whether a statute that Congress says was adopted by a majority really did have a majority, or to enforce similar rules of Congressional procedure. I’d think that carries over to impeachment proceedings.

I think it’s possible, though not at all certain, that the Court might make an exception in the case of impeachment, as it’s not in their institutional interest that impeachment become easier, since they’re subject to it themselves.

Whereas it’s no skin off their noses if Congress violates the Constitution on a routine basis when claiming to enact laws. Stopping THAT sort of thing is just their job, nothing really important.

But you’d need some pretty solid evidence of a very gross violation to get them to even consider it, I expect.

Somewhat tangentially, I’m somewhat interested in the disparate treatment the US Supreme Court gives the impeachment process – no judicial review – versus the way it treats this part of the US Constitution:

“Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members”

Here, according to the Supremes, the Art. III courts can review the House or Senate’s decisions for legal error (but not factual error):

That is there is no evidence that Trump has ever submitted to the jurisdiction thereof Congress and thus waived his personal sovereign right to travel unmolested throughout the land as is his common law right to do so.

This would make any impeachment effort by Congress (which may not even be duly constituted) a de facto bill of attainder which is a patent violation of the enumerated powers of the legislative department.

And seeing as the citizenship of many Congress members may be questioned as they did not file proof of citizenship upon taking office, there is still the open question on whether not it is even a legitimate functioning governmental authority. The proper venue to decide that though would not be the federal courts, which are that of limited jurisdiction as mandated by Article III, but settled by a Convention of the States by a four-fifths vote.

If Congress could do anything it may be able to issue a letter of marque for plunder obtained illegally by agents of Trump in international waters. However, this may have limited effects if that booty is being transported under an international flag of trade.

You would think that the supposed law professor on this blog would be able to break down the constitutional and legal framework of this complex subject a bit better.

Simply put, obstruction of justice is defined as “as an act that “corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.”

Let’s interpret this broadly. A “Threatening communication that endeavors to influence the due administration of justice”.

Now, a public “Call for impeachment” could very well be interpreted as a threatening communication. It is a threat, for sure. And it was seeking to influence a current investigation…a Russian interference investigation, as currently authorized by the law. By this logic, several dozen current members of Congress are clearly guilty of Obstruction of Justice, and immediately need to be tried.

This line of thinking was discussed extensively here on the VC when Texas’s Governor Perry was threatened with prosecution for engaging in politics he was entitled to engage in. Calls for impeachment made by members or Senators would be protected by the speech and debate clause. Calls for impeachment made in the public are core political speech covered by the 1A. Your pointlessly but intentionally broad interpretation of obstruction does not trump the Constitution.

As the Chase quote makes clear, Congress has the power to impeach and remove the President for obeying a federal court order it doesn’t like. And if it does this, the courts have no ability to interfere. That should settle the matter.

Never mind the Supreme Court, what about the Chief Justice who is supposed to preside over a presidential impeachment trial? What if the Chief Justice decides that the Articles of Impeachment are a legal nullity (for example because they only cover acts that no reasonable person could consider “high crimes and misdemeanours”), and refuses to turn up?

One thing that it seems most commentators seem to miss when writing about Trump and legal matters is that Trump reacts to legal matters like a client, not a lawyer. In particular, Trump acts like a client whose corporation is run more like a sole proprietorship. My guess is that most legal commentators miss this for two reasons: (1) they’re snooty even as compared to other lawyers; and (2) it’s likely been a while since they’ve had to deal with a real client. (Filing amicus briefs doesn’t count.) This isn’t to say that Trump is right; it’s just one of the several ways he has chosen to not modify his personal conduct in light of his presidency. His conduct is obvious to a practicing lawyer, however, and his conduct is not especially unusual as far as clients go, most of whom want their rights vindicated even if they “have to go all the way to the Supreme Court.”

That’s not exactly how I would put it. Lawyers often spend time educating their clients (sophisticated and otherwise) on what the law actually is. Compliance with the law is more than occasionally counterintuitive; for example, if I didn’t do anything wrong to begin with, how is it that I can (effectively) be held liable for an alleged retaliatory act? In addition, while the client might need to come to the understanding in the end, it doesn’t mean that the client isn’t free to express frustration along the way.

This guy isn’t “the client,” this guy is the President of the United States. His inability to understand the law, or the office he holds, is far more consequential than some private nobody who needs a lawyer’s explanations. Trump’s willful persistence in that conduct means that, of course, he needs to be impeached. Trump leaves Congress no choice.

No President understands all the laws; it isn’t possible. No modern President has “understood” the office, either – every modern ex-President has publicly said so after their terms were up. This is not partisan, as similar statements have been made by the range from the Bushes to Obama.

The person in the United States with the most ability to understand all the laws is the President, since he has a literal army of people to tell him what they are. The problem is the President doesn’t ask those people what the law is before he posts idiotic shit online. That’s what we’re talking about. If you had those resources at your disposal, and understood that what you say matters to the lives of other human beings, would you ever be so fucking careless and callous? No, because you’re not a psycho.

Can I see your M.D. diploma, Psychology specialty certificate and your med board scores where you passed to practice mental health online? You’re shit is why Trump got elected and why he will be re-elected. Enough of the electorate got fed up with it . Just think, if you and the rest of your proggie pals could have kept your big fat mouths shut, you wouldn’t be all so twisted up inside.

When Trump wins in 2020, just which way are you going to do yourself in when all you fantastic hopes are dashed to dust? Are you going to: Hang yourself, Score some fentanyl and OD, Step in front of a subway car, or Simply suck start a shotgun?

Interested people want to know because you’re so tied up with this you’re going to go off the deep end if you don’t get your way.

It is true that the Constitution explicitly gives the House power to impeach and the Senate power to convict and remove from office. This is in black and white, and uncontested.

It is also true that the Constitution explicitly gives Congress power to enforce the Fifteenth Amendment. That didn’t stop the current Supreme Court from reaching the conclusion they did in Shelby County v. Holder. Their proposed reason why Congress couldn’t order pre-clearance led Judge Posner to say “This is a principle of constitutional law of which I had never heard—for the excellent reason that, as Eric points out and I will elaborate upon briefly, there is no such principle.”

The well-researched examples Keith Whittington cites are from long-past versions of the Supreme Court. Can the current one be trusted not to invent some new principle of constitutional law out of sheer nothingness and use it to nullify the impeachment power?

Pondering that question, we should keep in mind the sitting Supreme Court justice who has publicly sworn partisan revenge against Democrats. If an impeachment case reaches the Supreme Court, it will not have been led by Republicans, though certainly it should have been.

Sure there is. They just put some rare teeth in the “proper” part of “necessary and proper”. It IS constitutionally possible for Congress to enact a law that’s such absurd BS as to be unconstitutional even though it’s purportedly within an area of enumerated powers.

It’s just that the Court has, historically, been very lax about calling them on it.

A Democrat controlled House is going to save him from impeachment, barring some real evidence of guilt. Too many Democrats from swing districts that voted Trump in, and would be very unhappy about an attempt to undo the election.

I wouldn’t trust the Democrats, they do to many illogical things. Impeaching Trump and the ensuing investigation could bring down a lot more Democrats than one President, and yet they seem insane enough to try it.

Stupid political rhetoric doesn’t get any less stupid when applied to Trump than it did when applied to Bill Clinton. Impeachment does not overturn an election. It would make Pence president, not Hillary.

And of course only a small minority of the country would be unhappy about an attempt to remove Trump. He wasn’t popular when he “won” with a minority of the vote, and is even less popular now.